NOTICE: This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
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on writs of certiorari to the united states court of appeals for
the ninth circuit

[June 13, 1996]

Justice Kennedy
delivered the opinion of the Court.

The petitioners' guilt has been established, and we are concerned here
only with the sentencing determinations made by the District Court and
Court of Appeals. A sentencing court's departure decisions are based on
the facts of the case, however, so we must set forth the details of the
crime at some length.

On the evening of March 2, 1991, Rodney King and two of his friends
sat in King's wife's car in Altadena, California, a city in Los Angeles
County, and drank malt liquor for a number of hours. Then, with King driving,
they left Altadena via a major freeway. King was intoxicated.

California Highway Patrol officers observed King's car traveling
at a speed they estimated to be in excess of 100 m.p.h. The officers followed
King with red lights and sirens activated and ordered him by loudspeaker
to pull over, but he continued to drive. The Highway Patrol officers called
on the radio for help. Units of the Los Angeles Police Department joined
in the pursuit, one of them manned by petitioner Laurence Powell and his
trainee, Timothy Wind.

King left the freeway, and after a chase of about eight miles,
stopped at an entrance to a recreation area. The officers ordered King
and his two passengers to exit the car and to assume a felony prone position--that
is, to lie on their stomachs with legs spread and arms behind their backs.
King's two friends complied. King, too, got out of the car but did not
lie down. Petitioner Stacey Koon arrived, at once followed by Ted Briseno
and Roland Solano. All were officers of the Los Angeles Police Department,
and as sergeant, Koon took charge. The officers again ordered King to assume
the felony prone position. King got on his hands and knees but did not
lie down. Officers Powell, Wind, Briseno and Solano tried to force King
down, but King resisted and became combative, so the officers retreated.
Koon then fired taser darts (designed to stun a combative suspect) into
King.

The events that occurred next were captured on videotape by a
bystander. As the videotape begins, it shows that King rose from the ground
and charged toward Officer Powell. Powell took a step and used his baton
to strike King on the side of his head. King fell to the ground. From the
18th to the 30th second on the videotape, King attempted to rise, but Powell
and Wind each struck him with their batons to prevent him from doing so.
From the 35th to the 51st second, Powell administered repeated blows to
King's lower extremities; one of the blows fractured King's leg. At the
55th second, Powell struck King on the chest, and King rolled over and
lay prone. At that point, the officers stepped back and observed King for
about 10 seconds. Powell began to reach for his handcuffs. (At the sentencing
phase, the District Court found that Powell no longer perceived King to
be a threat at this point).

At one minute five seconds (1:05) on the videotape, Briseno, in
the District Court's words, "stomped" on King's upper back or neck. King's
body writhed in response. At 1:07, Powell and Wind again began to strike
King with a series of baton blows, and Wind kicked him in the upper thoracic
or cervical area six times until 1:26. At about 1:29, King put his hands
behind his back and was handcuffed. Where the baton blows fell and the
intentions of King and the officers at various points were contested at
trial, but, as noted, petitioners' guilt has been established.

Powell radioed for an ambulance. He sent two messages over a communications
network to the other officers that said " `ooops' " and " `I havent [sic]
beaten anyone this bad in a long time.' " 34 F. 3d 1416, 1425 (CA9 1994).
Koon sent a message to the police station that said " `U[nit] just had
a big time use of force. . . . Tased and beat the suspect of CHP pursuit
big time.' " Id., at 1425.

King was taken to a hospital where he was treated for a fractured
leg, multiple facial fractures, and numerous bruises and contusions. Learning
that King worked at Dodger Stadium, Powell said to King: " `We played a
little ball tonight, didn't we Rodney? . . . You know, we played a little
ball, we played a little hardball tonight, we hit quite a few home runs.
. . . Yes, we played a little ball and you lost and we won.' " Ibid.

Koon, Powell, Briseno, and Wind were tried in state court on charges
of assault with a deadly weapon and excessive use of force by a police
officer. The officers were acquitted of all charges, with the exception
of one assault charge against Powell that resulted in a hung jury. The
verdicts touched off widespread rioting in Los Angeles. More than 40 people
were killed in the riots, more than 2,000 were injured, and nearly $1 billion
in property was destroyed. New Initiatives for a New Los Angeles: Final
Report and Recommendations, Senate Special Task Force on a New Los Angeles,
Dec. 9, 1992, at 10-11.

On August 4, 1992, a federal grand jury indicted the four officers
under 18 U.S.C.
§ 242 charging them with violating King's constitutional rights
under color of law. Powell, Briseno, and Wind were charged with willful
use of unreasonable force in arresting King. Koon was charged with willfully
permitting the other officers to use unreasonable force during the arrest.
After a trial in United States District Court for the Central District
of California, the jury convicted Koon and Powell but acquitted Wind and
Briseno.

We now consider the District Court's sentencing determinations.
Under the Sentencing Guidelines, a district court identifies the base offense
level assigned to the crime in question, adjusts the level as the Guidelines
instruct, and determines the defendant's criminal history category. 1992
USSG §1B1.1. Coordinating the adjusted offense level and criminal
history category yields the appropriate sentencing range. Ibid.

The District Court sentenced petitioners pursuant to §2H1.4
of the United States Sentencing Commission, Guidelines Manual (Nov. 1992)
(1992 USSG), which applies to violations of 18
U.S.C. § 242. Section 2H1.4 prescribes a base offense level which
is the greater of the following: 10; or 6 plus the offense level applicable
to any underlying offense. The District Court found the underlying offense
was aggravated assault, which carries a base offense level of 15, 1992
USSG §2A2.2(a), to which 6 was added for a total of 21.

The court increased the offense level by four because petitioners
had used dangerous weapons, §2A2.2(b)(2)(B). The Government asked
the court also to add four levels for King's serious bodily injury pursuant
to §2A2.2(b) (3)(B). The court found, however, that King's serious
injuries were sustained when the officers were using lawful force. (At
trial, the Government contended that all the blows administered after King
fell to the ground 30 seconds into the videotape violated §242. The
District Court found that many of those blows "may have been tortious,"
but that the criminal violations did not commence until 1:07 on the videotape,
after Briseno stomped King). The court did add two levels for bodily injury
pursuant to §2A2.2(b)(3)(A). The adjusted offense level totaled 27,
and because neither petitioner had a criminal record, each fell within
criminal history category I. The sentencing range for an offense level
of 27 and a criminal history category I was, under the 1992 Guidelines,
70 to 87 months' imprisonment. Rather than sentencing petitioners to a
term within the Guideline range, however, the District Court departed downward
eight levels. The departure determinations are the subject of this controversy.

The court granted a five level departure because "the victim's
wrongful conduct contributed significantly to provoking the offense behavior,"
§5K2.10 (policy statement). 833 F. Supp. 769, 787 (CD Cal. 1993).
The court also granted a three level departure, based on a combination
of four factors. First, as a result of the "widespread publicity and emotional
outrage which have surrounded this case," petitioners were "particularly
likely to be targets of abuse" in prison. Id., at 788. Second, petitioners
would face job termination proceedings, after which they would lose their
positions as police officers, be disqualified from prospective employment
in the field of law enforcement, and suffer the "anguish and disgrace these
deprivations entail." Id., at 789. Third, petitioners had been "significantly
burden[ed]" by having been subjected to successive state and federal prosecutions.
Id., at 790. Fourth, petitioners were not "violent, dangerous, or
likely to engage in future criminal conduct," so there was "no reason to
impose a sentence that reflects a need to protect the public from [them]."
Ibid. The court concluded these factors justified a departure when
taken together, although none would have been sufficient standing alone.
Id., at 786.

The departures yielded an offense level of 19 and a sentencing
range of 30 to 37 months' imprisonment. The court sentenced each petitioner
to 30 months' imprisonment. The petitioners appealed their convictions,
and the Government appealed the sentences, arguing that the District Court
erred in granting the downward departures and in failing to adjust the
offense level upward for serious bodily injury. The Court of Appeals affirmed
petitioners' convictions, and affirmed the District Court's refusal to
adjust the offense level, but it reversed the District Court's departure
determinations. Only the last ruling is before us.

The Court of Appeals reviewed "de novo whether the district court
had authority to depart." 34 F. 3d 1416, 1451 (CA9 1994). The court reversed
the five level departure for victim misconduct, reasoning that misbehavior
by suspects is typical in cases involving excessive use of force by police
and is thus comprehended by the applicable Guideline. Id., at 1460.

As for the three level departure, the court rejected each factor
cited. Acknowledging that a departure for susceptibility to abuse in prison
may be appropriate in some instances and that police officers as a group
are susceptible to prison abuse, the court nevertheless said the factor
did not justify departure because "reliance solely on hostility
toward a group of which the defendant is a member provides an unlimited
open ended rationale for departing." Id., at 1455. The court further
noted that, unlike cases in which a defendant is vulnerable to prison abuse
due to physical characteristics over which he has no control, here the
petitioners' vulnerability stemmed from public condemnation of their crimes.
Id., at 1456.

As for petitioners' collateral employment consequences, the court
first held consideration of the factor by the trial court inconsistent
with the sentencing goals of 18
U.S.C. § 3553(a) because the factor did not "speak to the offender's
character, the nature or seriousness of the offense, or some other legitimate
sentencing concern." 34 F. 3d, at 1453. The court noted further that because
the societal consequences of a criminal conviction are almost unlimited,
reliance on them "would create a system of sentencing that would be boundless
in the moral, social, and psychological examinations it required courts
to make." Id., at 1454. Third, the court noted the ease of using
the factor to justify departures based on a defendant's socio economic
status, a consideration that, under 1992 USSG §5H1.10, is never a
permitted basis for departure. As a final point, the Court of Appeals said
the factor was "troubling" because petitioners, as police officers, held
positions of trust they had abused. Section 3B1.3 of the Guidelines increases,
rather than decreases, punishment for those who abuse positions of trust.
34 F. 3d., at 1454.

The Court of Appeals next found the successive state and federal
prosecutions could not be a downward departure factor. It deemed the factor
irrelevant to the sentencing goals of §3553(a)(2) and contradictory
to the Attorney General's determination that compelling federal interests
warranted a second prosecution. Id., at 1457. The court rejected
the last departure factor as well, ruling that low risk of recidivism was
comprehended in the criminal history category and so should not be double
counted. Id., at 1456-1457.

We granted certiorari to determine the standard of review governing
appeals from a district court's decision to depart from the sentencing
ranges in the Guidelines. The appellate court should not review the departure
decision de novo, but instead should ask whether the sentencing
court abused its discretion. Having invoked the wrong standard, the Court
of Appeals erred further in rejecting certain of the downward departure
factors relied upon by the District Judge.

The Sentencing Reform Act of 1984, as amended, 18
U.S.C. § 3551et seq., 28
U.S.C. §§ 991-998, made far reaching changes in federal sentencing.
Before the Act, sentencing judges enjoyed broad discretion in determining
whether and how long an offender should be incarcerated. Mistretta
v. United States,488
U.S. 361, 363 (1989). The discretion led to perceptions that "federal
judges mete out an unjustifiably wide range of sentences to offenders with
similar histories, convicted of similar crimes, committed under similar
circumstances." S. Rep. No. 98-225, p. 38 (1983).
In response, Congress created the United States Sentencing Commission and
charged it with developing a comprehensive set of sentencing guidelines,
28 U.S.C. §
994. The Commission promulgated the United States Sentencing Guidelines,
which "specify an appropriate [sentencing range] for each class of convicted
persons" based on various factors related to the offense and the offender.
United States Sentencing Commission, Guidelines Manual ch. 1, pt. A (Nov.
1995) (1995 USSG). A district judge now must impose on a defendant a sentence
falling within the range of the applicable Guideline, if the case is an
ordinary one.

The Act did not eliminate all of the district court's discretion,
however. Acknowledging the wisdom, even the necessity, of sentencing procedures
that take into account individual circumstances, see 28
U.S.C. § 991(b)(1)(B), Congress allows district courts to depart
from the applicable Guideline range if "the court finds that there exists
an aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from that described."
18 U.S.C. §
3553(b). To determine whether a circumstance was adequately taken into
consideration by the Commission, Congress instructed courts to "consider
only the sentencing guidelines, policy statements, and official commentary
of the Sentencing Commission." Ibid.

Turning our attention, as instructed, to the Guidelines Manual,
we learn that the Commission did not adequately take into account cases
that are, for one reason or another, "unusual." 1995 USSG ch. 1, pt. A,
intro. comment. 4(b). The Introduction to the Guidelines explains:

"The Commission intends the sentencing courts to treat each guideline
as carving out a `heartland,' a set of typical cases embodying the conduct
that each guideline describes. When a court finds an a typical case, one
to which a particular guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider whether a departure
is warranted." Ibid.

The Commission lists certain factors which never can be bases for departure
(race, sex, national origin, creed, religion, socio economic status, 1995
USSG §5H1.10; lack of guidance as a youth, §5H1.12; drug or alcohol
dependence, §5H1.4; and economic hardship, §5K2.12), but then
states that with the exception of those listed factors, it "does not intend
to limit the kinds of factors, whether or not mentioned anywhere else in
the guidelines, that could constitute grounds for departure in an unusual
case." 1995 USSG ch. 1, pt. A, intro. comment. 4(b). The Commission gives
two reasons for its approach:

"First, it is difficult to prescribe
a single set of guidelines that encompasses the vast range of human conduct
potentially relevant to a sentencing decision. The Commission also recognizes
that the initial set of guidelines need not do so. The Commission is a
permanent body, empowered by law to write and rewrite guidelines, with
progressive changes, over many years. By monitoring when courts depart
from the guidelines and by analyzing their stated reasons for doing so
and court decisions with references thereto, the Commission, over time,
will be able to refine the guidelines to specify more precisely when departures
should and should not be permitted.

"Second, the Commission believes that despite the courts' legal
freedom to depart from the guidelines, they will not do so very often.
This is because the guidelines, offense by offense, seek to take account
of those factors that the Commission's data indicate made a significant
difference in pre-guidelines sentencing practice." Ibid.

So the Act authorizes district courts to depart in cases that feature
aggravating or mitigating circumstances of a kind or degree not adequately
taken into consideration by the Commission. The Commission, in turn, says
it has formulated each Guideline to apply to a heartland of typical cases.
Atypical cases were not "adequately taken into consideration," and factors
that may make a case atypical provide potential bases for departure. Potential
departure factors "cannot, by their very nature, be comprehensively listed
and analyzed in advance," 1995 USSG §5K2.0, of course. Faced with
this reality, the Commission chose to prohibit consideration of only a
few factors, and not otherwise to limit, as a categorical matter, the considerations
which might bear upon the decision to depart.

Sentencing courts are not left adrift, however. The Commission
provides considerable guidance as to the factors that are apt or not apt
to make a case atypical, by listing certain factors as either encouraged
or discouraged bases for departure. Encouraged factors are those "the Commission
has not been able to take into account fully in formulating the guidelines."
§5K2.0. Victim provocation, a factor relied upon by the District Court
in this case, is an example of an encouraged downward departure factor,
§5K2.10, whereas disruption of a governmental function is an example
of an encouraged upward departure factor, §5K2.7. Even an encouraged
factor is not always an appropriate basis for departure, for on some occasions
the applicable Guideline will have taken the encouraged factor into account.
For instance, a departure for disruption of a governmental function "ordinarily
would not be justified when the offense of conviction is an offense such
as bribery or obstruction of justice; in such cases interference with a
government function is inherent in the offense." Ibid. A court still
may depart on the basis of such a factor but only if it "is present to
a degree substantially in excess of that which ordinarily is involved in
the offense." §5K2.0.

Discouraged factors, by contrast, are those "not ordinarily relevant
to the determination of whether a sentence should be outside the applicable
guideline range." 1995 USSG ch. 5, pt. H, intro. comment. Examples include
the defendant's family ties and responsibilities, 1995 USSG §5H1.6,
his or her education and vocational skills, §5H1.2, and his or her
military, civic, charitable, or public service record, §5H1.11. The
Commission does not view discouraged factors "as necessarily inappropriate"
bases for departure but says they should be relied upon only "in exceptional
cases." 1995 USSG ch. 5, pt. H, intro. comment.

The Commission's treatment of departure factors led then Chief
Judge Breyer to explain that a sentencing court considering a departure
should ask the following questions:

"1) What features of this case, potentially,
take it outside the Guidelines' `heartland' and make of it a special, or
unusual, case?

"2) Has the Commission forbidden departures based on those features?

"3) If not, has the Commission encouraged departures based on
those features?

"4) If not, has the Commission discouraged departures based on
those features?" United States v. Rivera, 994 F. 2d 942,
949 (CA1 1993).

We agree with this summary. If the special factor is a forbidden factor,
the sentencing court cannot use it as a basis for departure. If the special
factor is an encouraged factor, the court is authorized to depart if the
applicable Guideline does not already take it into account. If the special
factor is a discouraged factor, or an encouraged factor already taken into
account by the applicable Guideline, the court should depart only if the
factor is present to an exceptional degree or in some other way makes the
case different from the ordinary case where the factor is present. Cf.
ibid. If a factor is unmentioned in the Guidelines, the court must,
after considering the "structure and theory of both relevant individual
guidelines and the Guidelines taken as a whole," id., at 949, decide
whether it is sufficient to take the case out of the Guideline's heartland.
The court must bear in mind the Commission's expectation that departures
based on grounds not mentioned in the Guidelines will be "highly infrequent."
1995 USSG ch. 1, pt. A.

Against this background, we consider the standard of review.

Before the Guidelines system, a federal criminal sentence within statutory
limits was, for all practical purposes, not reviewable on appeal. Dorszynski
v. United States,418
U.S. 424, 431 (1974) (reiterating "the general proposition that once
it is determined that a sentence is within the limitations set forth in
the statute under which it is imposed, appellate review is at an end");
United States v. Tucker,404
U.S. 443, 447 (1972) (same). The Act altered this scheme in favor of
a limited appellate jurisdiction to review federal sentences. 18
U.S.C. § 3742. Among other things, it allows a defendant to appeal
an upward departure and the Government to appeal a downward one. §§3742(a),
(b).

That much is clear. Less clear is the standard of review on appeal.
The Government advocates de novo review, saying that, like the Guidelines
themselves, appellate review of sentencing, and in particular of departure
decisions, was intended to reduce unjustified disparities in sentencing.
In its view, de novo review of departure decisions is necessary
"to protect against unwarranted disparities arising from the differing
sentencing approaches of individual district judges." Brief for United
States 12.

We agree that Congress was concerned about sentencing disparities,
but we are just as convinced that Congress did not intend, by establishing
limited appellate review, to vest in appellate courts wide ranging authority
over district court sentencing decisions. Indeed, the text of §3742
manifests an intent that district courts retain much of their traditional
sentencing discretion. Section 3742(e), as enacted in 1984, provided "[t]he
court of appeals shall give due regard to the opportunity of the district
court to judge the credibility of the witnesses, and shall accept the findings
of fact of the district court unless they are clearly erroneous." In 1988,
Congress amended the statute to impose the additional requirement that
courts of appeals "give due deference to the district court's application
of the guidelines to the facts." Examining §3742 in Williams
v. United States,503
U.S. 193 (1992), we stated as follows:

"Although the Act established a limited
appellate review of sentencing decisions, it did not alter a court of appeals'
traditional deference to a district court's exercise of its sentencing
discretion. . . . The development of the guideline sentencing regime has
not changed our view that, except to the extent specifically directed by
statute, `it is not the role of an appellate court to substitute its judgment
for that of the sentencing court as to the appropriateness of a particular
sentence.' " (quoting Solem v. Helm,463
U.S. 277, 290, n. 16 (1983)). 503 U. S., at 205.

See also S. Rep. No. 225, at 150 ("The sentencing provisions of the
reported bill are designed to preserve the concept that the discretion
of a sentencing judge has a proper place in sentencing and should not be
displaced by the discretion of an appellate court").

That the district court retains much of its traditional discretion
does not mean appellate review is an empty exercise. Congress directed
courts of appeals to "give due deference to the district court's application
of the guidelines to the facts." 18
U.S.C. § 3742(e)(4). The deference that is due depends on the
nature of the question presented. The district court may be owed no deference,
for instance, when the claim on appeal is that it made some sort of mathematical
error in applying the Guidelines; under these circumstances, the appellate
court will be in as good a position to consider the question as the district
court was in the first instance.

A district court's decision to depart from the Guidelines, by
contrast, will in most cases be due substantial deference, for it embodies
the traditional exercise of discretion by a sentencing court. See Mistretta,
488 U. S., at 367 (noting that although the Act makes the Guidelines binding
on sentencing courts, "it preserves for the judge the discretion to depart
from the guideline applicable to a particular case"). Before a departure
is permitted, certain aspects of the case must be found unusual enough
for it to fall outside the heartland of cases in the Guideline. To resolve
this question, the district court must make a refined assessment of the
many facts bearing on the outcome, informed by its vantage point and day
to day experience in criminal sentencing. Whether a given factor is present
to a degree not adequately considered by the Commission, or whether a discouraged
factor nonetheless justifies departure because it is present in some unusual
or exceptional way, are matters determined in large part by comparison
with the facts of other Guidelines cases. District courts have an institutional
advantage over appellate courts in making these sorts of determinations,
especially as they see so many more Guidelines cases than appellate courts
do. In 1994, for example, 93.9% of Guidelines cases were not appealed.
Letter from Pamela G. Montgomery, Deputy General Counsel, United States
Sentencing Commission (Mar. 29, 1996). "To ignore the district court's
special competence--about the `ordinariness' or `unusualness' of a particular
case--would risk depriving the Sentencing Commission of an important source
of information, namely, the reactions of the trial judge to the fact specific
circumstances of the case. . . ." Rivera, 994 F. 2d, at 951.

Considerations like these persuaded us to adopt the abuse of discretion
standard in Cooter & Gell v. Hartmarx Corp.,496
U.S. 384 (1990), which involved review of a district court's imposition
of Rule 11 sanctions, and in Pierce v. Underwood,487
U.S. 552 (1988), which involved review of a district court's determination
under the Equal Access to Justice Act, 28
U.S.C. § 2412(d), that the position of the United States was "substantially
justified," thereby precluding an award of attorneys' fees against the
Government. There, as here, we noted that deference was owed to the " `judicial
actor . . . better positioned than another to decide the issue in question.'
" Pierce,supra, at 559-560 (quoting Miller v. Fenton,474
U.S. 104, 114 (1985); Cooter & Gell,supra, at 403.
Furthermore, we adopted deferential review to afford "the district court
the necessary flexibility to resolve questions involving `multifarious,
fleeting, special, narrow facts that utterly resist generalization.' "
496 U. S., at 404 (quoting Pierce,supra, at 561-562). Like
the questions involved in those cases, a district court's departure decision
involves "the consideration of unique factors that are `little susceptible
. . . of useful generalization,' " 496 U. S., at 404, and as a consequence,
de novo review is "unlikely to establish clear guidelines for lower
courts," id., at 405.

The Government seeks to avoid the factual nature of the departure
inquiry by describing it at a higher level of generality linked closely
to questions of law. The relevant question, however, is not, as the Government
says, "whether a particular factor is within the `heartland' " as a general
proposition, Brief for United States 28, but whether the particular factor
is within the heartland given all the facts of the case. For example, it
does not advance the analysis much to determine that a victim's misconduct
might justify a departure in some aggravated assault cases. What the district
court must determine is whether the misconduct which occurred in the particular
instance suffices to make the case atypical. The answer is apt to vary
depending on, for instance, the severity of the misconduct, its timing,
and the disruption it causes. These considerations are factual matters.

This does not mean that district courts do not confront questions
of law in deciding whether to depart. In the present case, for example,
the Government argues that the District Court relied on factors that may
not be considered in any case. The Government is quite correct that whether
a factor is a permissible basis for departure under any circumstances is
a question of law, and the court of appeals need not defer to the district
court's resolution of the point. Little turns, however, on whether we label
review of this particular question abuse of discretion or de novo,
for an abuse of discretion standard does not mean a mistake of law is beyond
appellate correction. Cooter & Gell,supra, at 402. A
district court by definition abuses its discretion when it makes an error
of law. 496 U. S., at 405. That a departure decision, in an occasional
case, may call for a legal determination does not mean, as a consequence,
that parts of the review must be labeled de novo while other parts
are labeled an abuse of discretion. See id., at 403 (court of appeals
should "apply a unitary abuse of discretion standard"). The abuse of discretion
standard includes review to determine that the discretion was not guided
by erroneous legal conclusions.

The principles we have explained require us to reverse the rulings of
the Court of Appeals in significant part.

The District Court departed downward five levels because King's "wrongful
conduct contributed significantly to provoking the offense behavior." 833
F. Supp., at 786. Victim misconduct was an encouraged basis for departure
under the 1992 Guidelines and is so now. 1992 USSG §5K2.10; 1995 USSG
§5K2.10.

Most Guidelines prescribe punishment for a single discrete statutory
offense or a few similar statutory offenses with rather predictable fact
patterns. Petitioners were convicted of violating 18
U.S.C. § 242 however, a statute unusual for its application in
so many varied circumstances. It prohibits, among other things, subjecting
any person under color of law "to the deprivation of any rights, privileges,
or immunities secured or protected by the Constitution or laws of the United
States." A violation of §242 can arise in a myriad of forms, and the
Guideline applicable to the statute applies to any violation of §242
regardless of the form it takes. 1992 USSG §2H1.4. Section 2H1.4 takes
account of the different kinds of conduct that might constitute a §242
violation by instructing courts to use as a base offense level the greater
of 10, or 6 plus the offense level applicable to any underlying offense.
In this way, §2H1.4 incorporates the base offense level of the underlying
offense; as a consequence, the heartland of §2H1.4 will vary depending
on the defendant's conduct.

Here, the underlying offense was aggravated assault. After adjusting
the offense level for use of a dangerous weapon and bodily injury, see
1992 USSG §1B1.5(a) (a Guideline that incorporates another Guideline
incorporates as well the other's specific offense characteristics), the
District Court added six levels as required by §2H1.4. Section 2H1.4
adds the six levels to account for the fact that the offense was committed
"under actual or purported legal authority," commentary to §2H1.4,
and that "the harm involved both the underlying conduct and activity intended
to deprive a person of his civil rights," ibid. (incorporating introductory
commentary to §2H1.1).

The District Court's analysis of this departure factor showed
a correct understanding in applying §2H1.4 as a mechanical matter
and in interpreting its heartland. After summarizing King's misconduct--his
driving while intoxicated, fleeing from the police, refusing to obey the
officers' commands, attempting to escape from police custody, etc.--the
District Court concluded that a downward departure pursuant to §5K2.10
was justified:

"Mr. King's provocative behavior
eventually subsided. The Court recognizes that by the time the defendants'
conduct crossed the line to unlawfulness, Mr. King was no longer resisting
arrest. He posed no objective threat, and the defendants had no reasonable
perception of danger. Nevertheless, the incident would not have escalated
to this point, indeed it would not have occurred at all, but for Mr. King's
initial misconduct." 833 F. Supp., at 787.

The court placed these facts within the context of the relevant Guideline
range:

"Messrs. Koon and Powell were convicted
of conduct which began as a legal use of force against a resistant suspect
and subsequently crossed the line to unlawfulness, all in a matter of seconds,
during the course of a dynamic arrest situation. However, the convicted
offenses fall under the same Guideline Sections that would apply to a jailor,
correctional officer, police officer or other state agent who intentionally
used a dangerous weapon to assault an inmate, without legitimate cause
to initiate a use of force.

"The two situations are clearly different. Police officers are
always armed with `dangerous weapons' and may legitimately employ those
weapons to administer reasonable force. Where an officer's initial use
of force is provoked and lawful, the line between a legal arrest and an
unlawful deprivation of civil rights within the aggravated assault Guideline
is relatively thin. The stringent aggravated assault Guideline, along with
its upward adjustments for use of a deadly weapon and bodily injury, contemplates
a range of offenses involving deliberate and unprovoked assaultive conduct.
The Guidelines do not adequately account for the differences between such
`heartland' offenses and the case at hand." Ibid.

The Court of Appeals rejected this analysis. It interpreted the District
Court to have found that King had been the but for cause of the crime,
not that he had provoked it. According to the Court of Appeals, the District
Court "ultimately focused not on provocation itself but rather on the volatility
of the incident, and the close proximity between, on the one hand, the
victim's misconduct and the officers' concomitant lawful use of force,
and, on the other hand, the appellants' unlawful use or authorization of
the use of force." 34 F. 3d, at 1459. The Court of Appeals thought these
considerations did not justify departure for victim misconduct. It first
quoted the test this Court formulated for excessive force cases under the
Fourth
Amendment:

" `The calculus of reasonableness
must embody allowance for the fact that police officers are often forced
to make split second judgments--in circumstances that are tense, uncertain,
and rapidly evolving-- about the amount of force that is necessary in a
particular situation.' " Ibid. (quoting Graham v. Connor,490
U.S. 386, 396-397 (1989)).

The Court of Appeals reasoned that "before a use of force can
be found excessive, the Graham `calculus,' embracing the very factor
which the district court found to be unusual in this case--the `dynamic
arrest situation'--has been taken into consideration." 34 F. 3d., at 1459.
Indeed, it noted the jury not only had to take the Graham factors
into account, but also, to establish criminal liability, had to conclude
that the petitioners "willfully came down on the wrong side of the
Graham standard." Ibid. (emphasis in original). The Court
of Appeals concluded that "the feature which the district court found unusual,
and exculpatory, is built into the most fundamental structure of excessive
force jurisprudence, and in criminal cases is built in twice." Ibid.

The court misinterpreted both the District Court's opinion and
the heartland of the applicable Guideline range. The District Court's observation
that the incident would not have occurred at all "but for" King's misconduct
does not alter the further ruling that King provoked petitioners' illegal
use of force. At the outset of its analysis, the District Court stated:
"[T]he Court finds, and considers as a mitigating circumstance, that Mr.
King's wrongful conduct contributed significantly to provoking the offense
behavior." 833 F. Supp., at 786. It later discussed "Mr. King's wrongdoing
and the substantial role it played in bringing about the defendants' unlawful
conduct." Id., at 787. Indeed, a finding that King's misconduct
provoked lawful force but not the unlawful force that followed without
interruption would be a startling interpretation and contrary to ordinary
understandings of provocation. A response need not immediately follow an
action in order to be provoked by it. The Commission recognized this when
it noted that although victim misconduct would rarely be a basis for departure
in a nonviolent offense, "an extended course of provocation and harassment
might lead a defendant to steal or destroy property in retaliation." 1992
USSG §5K2.10. Furthermore, even if an immediate response were required
by §5K2.10, it occurred here: The excessive force followed within
seconds of King's misconduct.

The Court of Appeals misinterpreted the heartland of §2H1.4
by concentrating on whether King's misconduct made this an unusual case
of excessive force. If §2H1.4 covered punishment only for excessive
force cases, it might well be a close question whether victim misconduct
of this kind would be sufficient to take the case out of the heartland.
Section 2H1.4 is not so designed, however. It incorporates the Guideline
for the underlying offense, here §2A2.2 for aggravated assault, and
thus creates a Guideline range and a heartland for aggravated assault committed
under color of law. As the District Court was correct to point out, the
same Guideline range applies both to a Government official who assaults
a citizen without provocation as well as instances like this where what
begins as legitimate force becomes excessive. The District Court did not
abuse its discretion in differentiating between the classes of cases, nor
did it do so in concluding that unprovoked assaults constitute the relevant
heartland. Victim misconduct is an encouraged ground for departure. A district
court, without question, would have had discretion to conclude that victim
misconduct could take an aggravated assault case outside the heartland
of §2A2.2. That petitioners' aggravated assaults were committed under
color of law does not change the analysis. The Court of Appeals thought
that it did because §2H1.4 "explicitly enhances sentences for official
misconduct beyond those for civilian misconduct." 34 F. 3d, at 1460.
The statement is a non sequitur. Section 2H1.4 imposes a six level increase
regardless of whether the Government official's aggravated assault is provoked
or unprovoked. Aggravated assault committed under color of law always will
be punished more severely than ordinary aggravated assault. The District
Court did not compare civilian offenders with official offenders; it compared
official offenders who are provoked with official offenders who are not.
That was the correct inquiry. The punishment prescribed by §2A2.2
contemplates unprovoked assaults, and as a consequence, the District Court
did not abuse its discretion in departing downward for King's misconduct
in provoking the wrong.

We turn now to the three level departure. As an initial matter, the
Government urges us to hold each of the factors relied upon by the District
Court to be impermissible departure factors under all circumstances. A
defendant's loss of career opportunities must always be an improper consideration,
the Government argues, because "persons convicted of crimes suffer a wide
range of consequences in addition to the sentence." Brief for United States
38. Susceptibility to prison abuse, continues the Government, likewise
never should be considered because the "degree of vulnerability to assault
is an entirely `subjective' judgment, and the number of defendants who
may qualify for that departure is `virtually unlimited.' " Id.,
at 39 (quoting 34 F. 3d, at 1455). And so on.

Those arguments, however persuasive as a matter of sentencing
policy, should be directed to the Commission. Congress did not grant federal
courts authority to decide what sorts of sentencing considerations are
inappropriate in every circumstance. Rather, 18
U.S.C. § 3553(b) instructs a court that, in determining whether
there exists an aggravating or mitigating circumstance of a kind or to
a degree not adequately considered by the Commission, it should consider
"only the sentencing guidelines, policy statements, and official commentary
of the Sentencing Commission." The Guidelines, however, "place essentially
no limit on the number of potential factors that may warrant departure."
Burns v. United States,501
U.S. 129, 136-137 (1991). The Commission set forth factors courts may
not consider under any circumstances but made clear that with those exceptions,
it "does not intend to limit the kinds of factors, whether or not mentioned
anywhere else in the guidelines, that could constitute grounds for departure
in an unusual case." 1995 USSG ch. I, pt. A, intro. comment. 4(b). Thus,
for the courts to conclude a factor must not be considered under any circumstances
would be to transgress the policymaking authority vested in the Commission.

An example is helpful. In United States v. Lara,
905 F. 2d 599 (1990), the Court of Appeals for the Second Circuit upheld
a District Court's downward departure based on the defendant's "potential
for victimization" in prison due to his diminutive size, immature appearance,
and bisexual orientation. Id., at 601. In what appeared to be a
response to Lara, the Commission amended 1989 USSG §5H1.4,
to make [p]hysicial . . . appearance, including physique" a discouraged
factor. 1995 USSG App. C., Amend. 386 (effective Nov. 1, 1991). The Commission
did not see fit, however, to prohibit consideration of physical appearance
in all cases, nor did it address the broader category of susceptibility
to abuse in prison. By urging us to hold susceptibility to abuse in prison
to be an impermissible factor in all cases, the Government would have us
reject the Commission's considered judgment in favor of our own.

The Government acknowledges as much but says its position is required
by 18 U.S.C. §
3553(a)(2). The statute provides:

"The court, in determining the particular
sentence to be imposed, shall consider--

. . . . .

"(2) the need for the sentence imposed--

"(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;

"(B) to afford adequate deterrence to criminal conduct;

"(C) to protect the public from further crimes of the defendant;
and

"(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner."

Echoing the Court of Appeals, the Government interprets §3553(a)(2)
to direct courts to test potential departure factors against its broad
sentencing goals and to reject, as a categorical matter, factors that are
inconsistent with them. The Government and the Court of Appeals read too
much into §3553(a)(2). The statute requires a court to consider the
listed goals in determining "the particular sentence to be imposed." The
wording suggests that the goals should be considered in determining which
sentence to choose from a given Guideline range or from outside the range,
if a departure is appropriate. The statute says nothing about requiring
each potential departure factor to advance one of the specified goals.
So long as the overall sentence is "sufficient, but not greater than necessary,
to comply" with the above listed goals, the statute is satisfied. §3553(a).

Even if the text of the statute were ambiguous, we would reject
the Government's interpretation. The Government's theory--that §3553(a)(2)
directs courts to decide for themselves, by reference to the broad, open
ended goals of the provision, whether a given factor ever can be an appropriate
sentencing consideration-- would impose widespread judicial control over
sentencing policy. This in turn would nullify the Commission's treatment
of particular departure factors and its determination that, with few exceptions,
departure factors should not be ruled out on a categorical basis. The sparse
text of §3553(a)(2) cannot support this implausible result. Congress
created the Commission to "establish sentencing policies and practices
for the Federal criminal justice system," 28
U.S.C. § 991(b)(1), and Congress instructed the Commission, not
the courts, to "review and revise" the Guidelines periodically, §994(o).
As a result, the Commission has assumed that its role is "over time [to].
. . refine the guidelines to specify more precisely when departures should
and should not be permitted." 1992 USSG ch. I, pt. A, intro. comment. 4(b).
Had Congress intended the courts to supervise the Commission's treatment
of departure factors, we expect it would have said so in a clear way. It
did not, and we will not assume this role.

We conclude, then, that a federal court's examination of whether
a factor can ever be an appropriate basis for departure is limited to determining
whether the Commission has proscribed, as a categorical matter, consideration
of the factor. If the answer to the question is no--as it will be most
of the time--the sentencing court must determine whether the factor, as
occurring in the particular circumstances, takes the case outside the heartland
of the applicable Guideline. We now turn to the four factors underlying
the District Court's three level departure.

The first question is whether the District Court abused its discretion
in relying on the collateral employment consequences petitioners would
face as a result of their convictions. The District Court stated:

"Defendants Koon and Powell will
be subjected to a multiplicity of adversarial proceedings. The LAPD Board
of Rights will charge Koon and Powell with a felony conviction and, in
a quasi judicial proceeding, will strip them of their positions and tenure.
Koon and Powell will be disqualified from other law enforcement careers.
In combination, the additional proceedings, the loss of employment and
tenure, prospective disqualification from the field of law enforcement,
and the anguish and disgrace these deprivations entail, will constitute
substantial punishment in addition to any court imposed sentence. In short,
because Koon and Powell are police officers, certain unique burdens flow
from their convictions." 833 F. Supp., at 789 (footnotes omitted).

The Court of Appeals rejected the District Court's analysis, noting
among other things the "ease with which this factor can be used to justify
departures that are based, either consciously or unconsciously, on the
defendant's socioeconomic status, a factor that is never a permissible
basis for review." 34 F. 3d, at 1454. We agree with the Court of Appeals
that a defendant's career may relate to his or her socio economic status,
but the link is not so close as to justify categorical exclusion of the
effect of conviction on a career. Although an impermissible factor need
not be invoked by name to be rejected, socio economic status and job loss
are not the semantic or practical equivalents of each other.

We nonetheless conclude that the District Court abused its discretion
by considering petitioners' career loss because the factor, as it exists
in these circumstances, cannot take the case out of the heartland of 1992
USSG §2H1.4. As noted above, 18
U.S.C. § 242 offenses may take a variety of forms, but they must
involve willful violations of rights under color of law. Although cognizant
of the deference owed to the district court, we must conclude it is not
unusual for a public official who is convicted of using his governmental
authority to violate a person's rights to lose his or her job and to be
barred from future work in that field. Indeed, many public employees are
subject to termination and are prevented from obtaining future government
employment following conviction of a serious crime, whether or not the
crime relates to their employment. See Cal. Govt. Code Ann. §19572(k)
(West 1995) ("Conviction of a felony or conviction of a misdemeanor involving
moral turpitude" constitutes cause for dismissal); §18935(f) (State
Personnel Board may refuse to declare eligible for state employment one
who has "been convicted of a felony, or convicted of a misdemeanor involving
moral turpitude"); Ky. Rev. Stat. Ann. 18A.146(2) (Michie 1992); 4 Pa.
Code §7.173 (1995). Public officials convicted of violating §242
have done more than engage in serious criminal conduct; they have done
so under color of the law they have sworn to uphold. It is to be expected
that a government official would be subject to the career related consequences
petitioners faced after violating §242, so we conclude these consequences
were adequately considered by the Commission in formulating §2H1.4.

We further agree with the Court of Appeals that the low likelihood of
petitioners' recidivism was not an appropriate basis for departure. Petitioners
were first time offenders and so were classified in Criminal History Category
I. The District Court found that "[w]ithin Criminal History Category I,
the Guidelines do not adequately distinguish defendants who, for a variety
of reasons, are particularly unlikely to commit crimes in the future. Here,
the need to protect the public from the defendants' future criminal conduct
is absent `to a degree' not contemplated by the Guidelines." 833 F. Supp.,
at 790, n. 20. The District Court failed to account for the Commission's
specific treatment of this issue, however. After explaining that a district
court may depart upward from the highest Criminal Offense Category, the
Commission stated:

"However, this provision is not symmetrical.
The lower limit of the range for Criminal History Category I is set for
a first offender with the lowest risk of recidivism. Therefore, a departure
below the lower limit of the guideline range for Criminal History Category
I on the basis of the adequacy of criminal history cannot be appropriate."
1992 USSG §4A1.3

The District Court abused its discretion
by considering appellants' low likelihood of recidivism. The Commission
took that factor into account in formulating the criminal history category.

The two remaining factors are susceptibility to abuse in prison and
successive prosecutions. The District Court did not abuse its discretion
in considering these factors. The Court of Appeals did not dispute, and
neither do we, the District Court's finding that "[t]he extraordinary notoriety
and national media coverage of this case, coupled with the defendants'
status as police officers, make Koon and Powell unusually susceptible to
prison abuse," 833 F. Supp., at 785-786. Petitioners' crimes, however brutal,
were by definition the same for purposes of sentencing law as those of
any other police officers convicted under 18
U.S.C. § 242 of using unreasonable force in arresting a suspect,
sentenced under §2H1.4, and receiving the upward adjustments petitioners
received. Had the crimes been still more severe, petitioners would have
been assigned a different base offense level or received additional upward
adjustments. Yet, due in large part to the existence of the videotape and
all the events that ensued, "widespread publicity and emotional outrage
. . . have surrounded this case from the outset," 833 F. Supp., at 788,
which led the District Court to find petitioners "particularly likely to
be targets of abuse during their incarceration," ibid. The District
Court's conclusion that this factor made the case unusual is just the sort
of determination that must be accorded deference by the appellate courts.

As for petitioners' successive prosecutions, it is true that consideration
of this factor could be incongruous with the dual responsibilities of citizenship
in our federal system in some instances. Successive state and federal prosecutions
do not violate the Double Jeopardy Clause. Heath v. Alabama,474
U.S. 82 (1985). Nonetheless, the District Court did not abuse its discretion
in determining that a "federal conviction following a state acquittal based
on the same underlying conduct . . . significantly burden[ed] the defendants."
833 F. Supp., at 790. The state trial was lengthy, and the toll it took
is not beyond the cognizance of the District Court.

The goal of the Sentencing Guidelines is, of course, to reduce unjustified
disparities and so reach towards the evenhandedness and neutrality that
are the distinguishing marks of any principled system of justice. In this
respect, the Guidelines provide uniformity, predictability, and a degree
of detachment lacking in our earlier system. This too must be remembered,
however. It has been uniform and constant in the federal judicial tradition
for the sentencing judge to consider every convicted person as an individual
and every case as a unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to ensue. We do not understand
it to have been the congressional purpose to withdraw all sentencing discretion
from the United States District Judge. Discretion is reserved within the
Sentencing Guidelines, and reflected by the standard of appellate review
we adopt.

* * *

The Court of Appeals identified the wrong standard
of review. It erred as well in finding that victim misconduct did not justify
the five level departure and that susceptibility to prison abuse and the
burdens of successive prosecutions could not be relied upon for the three
level departure. Those sentencing determinations were well within the sound
discretion of the District Court. The District Court did abuse its discretion
in relying on the other two factors forming the three level departure:
career loss and low recidivism risk. When a reviewing court concludes that
a district court based a departure on both valid and invalid factors, a
remand is required unless it determines the district court would have imposed
the same sentence absent reliance on the invalid factors. Williams,
503 U. S., at 203. As the District Court here stated that none of the four
factors standing alone would justify the three level departure, it is not
evident that the court would have imposed the same sentence if it had relied
only on susceptibility to abuse in prison and the hardship of successive
prosecutions. The Court of Appeals should therefore remand the case to
the District Court.

The judgment of the Court of Appeals is affirmed in part and reversed
in part, and the case is remanded for further proceedings consistent with
this opinion.